Man Wins Appeal on Violation of Probation in West Palm Beach

This case concerns an appeal in the Fourth District Court of Appeals located by Leonard Minus in West Palm Beach, Florida. As a condition of his probation, Minus was ordered to have no direct or indirect contact with the alleged victim in his case. After making a phone call to the alleged victim’s mother, Minus was charged with violating his probation. A final hearing was had and the trial court ruled that Minus willfully and substantially violated his probation because calling the victim’s mother constituted indirect contact.

Minus then successfully appealed his case. His conviction has been reversed and the appellate court has ordered that Minus’ probation and community control be reinstated.

When analyzing a violation of probation, it is first important to realize that there are a number of very important legal standards that must be met before a judge can find that a person has in fact violated their probation. First and foremost, the prosecutor is the one, and the only one, with a burden of proof. While a good criminal defense lawyer will aggressively challenge the State’s case, it is important to recognize that the defense has no duty to do or prove anything.

However, it is equally important to remember that the burden of proof is much lower in a violation of probation. In “normal” criminal cases, the prosecutor must prove each and every material allegation beyond and to the exclusion of every reasonable doubt. In a violation of probation, the prosecutor must only prove the allegations by a “preponderance of the evidence.” In non-legal terms, that means the prosecutor must simply “tip the scale” just enough to prove that there is more proof of guilt than there is of non-guilt.

Whether or not someone “willfully” violated their probation is a question of fact. In order for an appellate court to overturn a trial court’s finding that a person “willfully” violated their probation, the court record must show that there was no competent evidence to support the finding.

The case of Wilson v. State, 781 So. 2d 1185, 1187 (Fla. 5th DCA 2001) presented an allegation similar to Mr. Minus’ case. However, in the Wilson case, there was no evidence that the defendant had actually contacted the victim or that the purpose of contacting the victim’s mother was to “get to” the victim.

When rendering its decision in Minus’ case, the Fourth District Court of Appeals concurred with the ruling in Wilson and held that evidence of Minus’ phone call to the victim’s mother, by itself, was not enough to prove that he had willfully and substantially violated his probation. Additionally, the court record “lacked sufficient evidence” to prove that Minus was even notified by the trial court or his probation officer that “indirect contact” included contacting the victim’s mother. There was also no evidence that the victim lived with her mother or that the phone number in question was the victim’s residence.